You want Orders with those Fryes?

One of the most obvious things criminal defense attorneys do is throw as many motions at the courtroom walls as they can in hopes that something sticks before the trial begins. In the case of Casey Anthony, her defense team tossed an inordinate number during the course of nearly three years. Some were questionable, but for the most part, they’ve been rather credible. Recently, hearings held in Chief Judge Belvin Perry’s court (See: Order in His Court) addressed issues related to Frye. Called Frye motions, the name comes from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a case that argued the admissibility of polygraph tests as evidence. The primary goal of these types of motions is to determine whether scientific evidence should be admissible at trial. The judge decides whether to exclude unqualified evidence and new types of methodology that may not yet be accepted in the relevant scientific community. In other words, evidence should be peer reviewed and recognized as being sound before it’s allowed into a courtroom. So much for the basic lesson in law. Let’s get to the meat of several Frye motions Casey’s defense filed and explain how Judge Perry ruled on three of them. Late yesterday (April 26) afternoon, his orders were filed with the Clerk of Courts’ office. It’s not a stretch to say it was another bad day for Casey and her team. Very bad.

Order 1

Down came the hammer on the defense Motion to Preclude Phantom "Heart Sticker" Evidence. The defense had alleged that an FBI fingerprint examiner, Elizabeth Fontaine, tested duct tape taken from Caylee’s skull and claimed to notice "glue residue" that "looked like it was in the shape of a heart" prior to testing. When she re-examined it later, the image was gone. Poof! No photographs were taken, so no evidence of the residue exists. The defense argued that when evidence is destroyed, either inadvertently or in bad faith, it can’t be used against a defendant. They cited two case law examples, but the judge begged to differ. He said the defense hadn’t presented anything proving that the state either intentionally or negligently lost or disposed of the evidence or that it was "unavoidably consumed." The way Judge Perry wrote his order explains why he is held in such high regard among his peers. "For example, a witness in a robbery trial would be allowed to describe a weapon he believed the perpetrator was carrying, even if the weapon was not in evidence, or to testify that the perpetrator’s car was red, even if no photograph of the car was in evidence."

Order 2

You’d better take a very deep breath before blurting out this one, the Order Denying Motion to Exclude Unreliable Evidence (Post Mortem Banding) and Amended Motion in Limine for Hearing on the Unreliability of Scientific Testimony by Karen Lowe on Post-Mortem Hair Banding. Why this order was so long is because the original motion was filed December 30, 2010, and an amended version was filed March 29. Jose Baez argued that evidence of hair decomposition, otherwise known as post-mortem root banding, has never been admitted in a Florida court. He also noted that the results were not conclusive enough for the examiner who tested the hair. Karen Lowe wrote in her report: "I can’t say absolutely that the hair came from a dead body but is consistent" with post-mortem root banding. She requested additional hair samples to make the case stronger "rather than some other possibility of why one hair would look like that." Alas, Q12 was the only one that had the death band. Judge Perry acknowledged that novel scientific evidence is not admissible unless it meets the test established in Frye. He wrote that before an expert is allowed to testify at trial on the applicability of a new scientific principle, a trial judge must determine if the expert will help the jury understand the evidence. The jury must then decide whether the expert’s testimony is based on a scientific principle that has gained general acceptance in the field where it belongs. In other words, peer reviewed. The jury must also determine if the expert is qualified to present the testimony on the subject. As a matter of case law, the judge cited People v. Kogut, 806 N.Y.S. 2d 373, 374 (N.Y. Sup. 2005), where expert witnesses testified that post-mortem banding occurs when the hair begins to decompose inside the hair follicle, while still on the head of the deceased. They also testified that the technique for identifying death bands was "generally accepted in the relevant scientific community of criminologists who are involved in trace evidence analysis, a group that includes FBI, medical examiners, and police laboratories." The court in Kogut also cited Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which stated: "The methodology for identifying post-mortem hair banding was published in the Journal of Forensic Sciences in 1988 and has been subject to peer review, albeit within a small community." According to the judge, Karen Lowe’s testimony "will assist the jury in understanding the hair found in the trunk of the Defendant’s car," and that it is "based on a scientific principle that has gained acceptance in the particular field to which it belongs, and Ms. Lowe is a qualified expert."

Order 3

This one is titled the Order Denying Motion in Limine to Exclude All Evidence Relating to Canine Searches and Alerts. Law enforcement utilized two dogs trained in detecting human death. Of course, the defense alleged that testimony regarding the dogs’ alerts "suggests nothing that in the end is admissible," and argued that it doesn’t support any inference that the victim was dead at a specific location. The judge disagreed. He cited many examples of case law that supported his decision. For instance, the dogs, Gerus and Bones, were trained extensively, as were their respective trainers. While Judge Perry acknowledged there are no reported cases in Florida addressing the admissibility of evidence pertaining to cadaver dog alerts, of utmost importance was the fact that the dogs worked independently of each other, off lead, and both alerted to the same location. While denying the defense’s motion, the judge ruled that evidence and testimony will be admissible at trial "as long as the state establishes the proper foundation based upon factors set forth in Harris," which references Harris v. State, 2011 WL 1496470 (Fla. April 21, 2011). The Florida Supreme Court ruled that the trial court must be presented with the evidence necessary to make an adequate determination as to the dog’s reliability, especially since training and certification in Florida are not standardized. The experts will have to present the training and certification records, along with an explanation of those records. There are still outstanding motions the judge must rule on. They include plant root growth where Caylee’s remains were found, plus chloroform levels and air samples from the trunk of Casey’s car. State witness Dr. Arpad Vass is a research scientist and forensic anthropologist at Oak Ridge (Tenn.) National Laboratory who is well known in the field of decomposition odor analysis. He ran gas chromatograph/mass spectrometer tests on air and carpet samples from Casey’s trunk and found evidence of human decomposition and a high level of chloroform. The defense claims the chloroform was from Caylee’s bathing suit. If Judge Perry allows this evidence at trial, he will be the first judge in the U.S. to do so. While we wait for his latest orders, I think it’s safe to say that yesterday (April 26) must have been a real whopper of a day for the defense team. Something tells me they woke up this morning with a super-sized headache.

Hi Dave,Congratulations on your blog with OM!I am hoping that JP will allow the chromatograph/mass spectrometer testing in also, it's the only motion I've been concerned about. This trial being in part a milestone for scientific advancement would offer great strides toward justice for victims.Thank you for your insight, and very happy that you will be covering the Casey Anthony trial.

Apr 27, 2011 02:43 pm

Posted by
SageMom

Super-sized headache indeed! Something tells me they are in for a double whammy again today. I am unsure on the chloroform issue but who knows? It may come into play too! I guess the biggest looming question for me is DP or LWOP. I am going to leave this to the jury and the judge. Caylee is in good hands now.

Apr 27, 2011 02:44 pm

Posted by
pebbles426619@yahoo.com

I really pray they let all this evidence in. They found that she searched for chloroform on the computer, high amounts of it in the trunk.

I believe she did this to poor Caylee. She deserves either the DP, or LWOP. I never believed in the death penalty, but this case is very disturbing! How could anyone do this to their own child? Then party after the fact and act normal!

Very disgusting, and how can this family stand up for her? Unbelievable! I am praying the A's face charges after this trial is over, to much lies, to many cover ups, obstruction of Justice, ect...

Apr 27, 2011 02:47 pm

Posted by
eviemae

Well written..... Great to see you expanding Dave!

Apr 27, 2011 02:52 pm

Posted by
Marsha from NY

Great article. Continue the good work

Apr 27, 2011 02:56 pm

Posted by
Nanna Frances

Wonderful article!

Thank you for explaining the law in language I can understand. I am looking forward to readin more of your articles.

Apr 27, 2011 02:57 pm

Posted by
Mary Jo

Dave, what a proud moment this is for you! I am so proud of you as I am sure all of your other readers and commenter's are.

I love the title that you chose for this article. You have such a great way with words. This is a great article and a very good way to start off writing for the Orlando Magazine! You have written this article so that readers who are not aware of what Frye hearings are, will know and understand after reading your article. I love how you tied everything in at the end.I have no doubt that you will bring a lot of new readers to this magazine. I look forward to your next article. Your writing is appreciated! Again, great article!

Apr 27, 2011 03:00 pm

Posted by
guardianangel

Great article! I was pleased to see that Judge Perry will allow the post mortem hair banding into evidence. Yes, this will be a first for the state of Florida and open the door for this kind of evidence to be admitted into future trials. The hair will show that the remains of Caylee Anthony was in the trunk of Casey's Pontiac Sunfire for a period of time. Along with the cadaver canines, allowed to be introduced into evidence by Judge Perry , this is a big plus for the state in helping to prove this case.

I must say that it was a surprise to learn that the heart sticker residue would be allowed into evidence since it was destroyed during testing at the lab.

I am really looking forward to more of your reporting on this case, Marinade Dave. Your articles are easy for us laypeople to digest. Thank you.

Apr 27, 2011 03:03 pm

Posted by
Stewie

Thanks for the explanation on these motions. Judge Perry seems like a real tough judge. This case is going to be very interesting. I look forward to reading your blog as the case progresses.

Apr 27, 2011 03:17 pm

Posted by
nan11

Thanks for the great write up on the outcomes on some of the Frye motions, Dave. I’m still holding my breath waiting for the chloroform and air samples rulings, though.

I’m not sure about the defense having a headache—I thought they were having fun?

Add your comment:

About This Blog

'Marinade Dave' Knechel

Dave Knechel has been blogging about the Casey Anthony case since late 2008, drawing readers from all over the world. Best known as “Marinade Dave,” a nickname he got when he made marinades and also blogged about marinade recipes, Knechel is on assignment to blog about the case exclusively for orlandomagazine.com as Anthony goes to trial for first-degree murder. His posts will appear regularly on this site.